Nigel Stock v Rocla Ltd

[2022] FWC 1299

[2022] FWC 1299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nigel Stock

v

Rocla Ltd

(U2022/307)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 MAY 2022

Application for an unfair dismissal remedy – employment subject to Directions of Acting Victorian Chief Health Officer and Order made under the Public Health and Wellbeing Act 2008 (Vic) – Respondent required to comply and collect, record and hold vaccination information and to not permit unvaccinated workers to work outside the worker’s ordinary place of residence – Applicant required to work on Respondent’s premises –valid reason for termination related to capacity and misconduct – Dismissal not otherwise unfair.

1. Mr Nigel Stock has made an unfair dismissal application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). In his Form F2 – Unfair Dismissal Application form (Form F2), Mr Stock alleged that the termination of his employment by Precast Civil Industries Pty Ltd was unfair. The matter proceeded to a hearing conducted via Microsoft Teams on 20 May 2022. Ms Maria Bicchi of Ai Group appeared for the Respondent. Mr Alex Smith assisted Mr Stock. During the course of the hearing, Mr Stock gave evidence as did Mr Con Sahinis (Operations Manager – Wodonga) and Mr Brendan Tarlinton (Branch Manager – Wodonga) for the Respondent.

1. While Mr Stock named Precast Civil Industries Pty Ltd as the Respondent in his Form F2, the Respondent was recorded as Rocla Ltd in the Form F3 – Employer Response to Unfair Dismissal Application. I therefore sought confirmation from the parties as to the employing entity and there was ultimately no dispute that Rocla Ltd was part of the same corporate structure and was the relevant employing entity. I have therefore amended the application to record Rocla Ltd as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act.[1] I shall hereafter refer to Rocla Ltd as the Respondent.

1. Mr Stock began working for the Respondent in 2006 and was employed on a continuous basis thereafter. The Respondent manufactures concrete stormwater and drainage pipes and a range of precast products for civil construction. At the time of his dismissal in December 2021, Mr Stock was engaged to work full-time in the role of a Production Welder/Labourer within the Respondent’s factory at Wodonga.

Initial matters to be considered – s.396 of the Act

1. Mr Stock’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that he is a person protected from unfair dismissal because he had completed the minimum employment period, the Rocla Pty Ltd Wodonga Pipe Enterprise Agreement 2021[2]  applied to him and his annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that the Respondent was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).

Section 385 of the Act – was the dismissal unfair?

1. As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Stock was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Mr Stock’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy (s.385(d)).

1. This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:

“387      Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)       whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)       whether the person was notified of that reason; and

(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)       any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)       if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)       the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)       the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)       any other matters that the FWC considers relevant.”

Consideration

1. Having outlined the criteria in s.387 of the Act, I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.

Was there a valid reason for dismissal relating to Ms Stock’s capacity or conduct? – s.387(a)

1. In considering whether the dismissal of Mr Stock was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced”.[4]

1. By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times over the past two years, and it covered the relevant period during which Mr Stock’s dismissal took place. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the issuing of emergency powers, which include the issuing of directions pursuant to the PHWA.[5]

1. On 7 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions. These Directions imposed obligations on employers of certain identified workers (including manufacturing workers) to collect, record and hold vaccination information about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. Further, under these Directions:

a)A manufacturing worker was defined to mean a person who worked at or in connection with a premises used for the production or processing of goods, including but not limited to production or processing of whole or partial products;[6]

b)Employers of manufacturing workers were to ensure that unvaccinated workers did not work for them outside their ordinary place of residence on or after 15 October 2021 unless they had a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021.

c)Exceptions applied if a worker held a certification from a medical practitioner that they were unable to receive a COVID-19 vaccine due to a medical contraindication or an acute medical illness.

1. The COVID-19 Mandatory Vaccination (Workers) Directions were updated from time to time, with the last version of them to operate being the COVID-19 Mandatory Vaccination (Workers) Directions (No 8). These were in turn replaced by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) (Specified Workers Order), which commenced at 11:59pm on 15 December 2021 and remained in force at the time of Mr Stock’s dismissal. The Specified Workers Order provided that:

a)If a worker (which, as identified in Column 1 of Schedule 1 of the Specified Workers Order, included manufacturing workers) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 15 December 2021, their employer was required to collect, record and hold vaccination information about them;

b)Manufacturing workers were defined as persons who worked at or in connection with a premises used for the distribution, production or processing of goods, including but not limited to production or processing of whole or partial products;[7] and

c)Employers of such workers, including manufacturing workers, were not to permit their workers to work for them outside of their ordinary place of residence if they were unvaccinated or partially vaccinated.

1. Also in existence at the time of Mr Stock’s dismissal was the Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2021 (No 1) (General Workers Order). The General Workers Order had come into effect at 11:59pm on 15 December 2021. The General Workers Order had the objective of requiring employers to not permit general workers to work outside their homes if they were not fully vaccinated or exempt and defined ‘general worker’ as a person who did work but not including a person who was a worker within the meaning of the Specified Workers Order.

1. Mr Stock was asked in a meeting with Mr Sahinis and Mr Tarlinton on 20 December 2021 whether he was willing to get a COVID-19 vaccination and he answered that he was not. At that point, it appears Mr Stock was notified his employment was terminated. In any event, Mr Stock was notified in writing that his employment was terminated via the letter from the Respondent dated 21 December 2021 (the Termination Letter). In the Termination Letter, two reasons for the dismissal of Mr Stock were given:

·   his ongoing failure to follow a lawful and reasonable direction which was inconsistent with the employee/employer relationship; and

·   he was no longer able to meet the inherent requirements of his role.

1. Mr Stock submits there was no valid reason for his dismissal related to his capacity or conduct on two bases:

·   the Directions and Orders were illegal; or alternatively

·   if legal, the Directions and Orders did not apply to his employment.

1. The Respondent submitted at the hearing that the Specified Workers Order applied to it and Mr Stock but if the Specified Workers Order did not apply, the General Workers Order did.

1. Despite the range of submissions made by and on behalf of Mr Stock questioning and disputing the legality of the Directions and Orders and challenging their application to both himself and the Respondent, the Directions and Orders have at no stage been declared invalid by a Court and were in effect at all material times. I therefore proceed on the basis that the Directions and Orders are valid and lawful, and I do not propose to engage with the various propositions advanced in this regard by and on behalf of Mr Stock. The Commission must discharge its functions according to law.

1. Further I am satisfied that the Specified Workers Order applied to the Respondent and Mr Stock. Mr Stock’s proposition that concrete is a product and not a good does not assist him. The Respondent was an employer of a manufacturing worker because Mr Stock was a person who worked at a premises used for the distribution, production or processing of goods, which were defined under the Specified Workers Order as including and not being limited to a range of items, including “whole or partial products”.[8] I am satisfied that the concrete stormwater and drainage pipes and range of precast products for civil construction manufactured by the Respondent are ‘whole or partial products’ that fall within the definition of ‘goods’ as it applies in the definition of Manufacturing worker in the Specified Workers Order.

1. The Specified Workers Order imposed an obligation on the Respondent to collect, record and hold vaccination information about Mr Stock in the event he was or might be scheduled to work outside his ordinary place of residence after 11.59pm on 15 December 2021. Further, the Respondent was required to not permit Mr Stock to work for it outside his ordinary place of residence if he was unvaccinated. If the Respondent did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was unvaccinated. A refusal or failure by the Respondent to comply with a pandemic order or with a direction given to it or a requirement in the exercise of a pandemic management power was an offence for which a penalty of 300 penalty units applied.[9]

1. There is no dispute that Mr Stock was unvaccinated at the time of his dismissal and had indicated he would continue to decline vaccination. Mr Stock did not provide vaccination information disclosing he was either fully vaccinated or an excepted person. There was no mandatory requirement for Mr Stock to receive a COVID-19 vaccination and nor has there ever been. Mr Stock was within his rights to decline to become vaccinated. However, this choice of Mr Stock had the inevitable consequence of rendering him unable to perform his job. As Mr Stock chose not to become vaccinated and did not hold the certification required to be regarded as an ‘excepted person’ under either the Directions or the Specified Workers Order, he was unable to perform the job he was employed by the Respondent to do. Mr Stock’s job was an on-site position and it was agreed that no part of his role was able to be performed from home or at any other location.

1. For its part, the Respondent did not hold ‘vaccination information’ about Mr Stock on 20 December 2021 and was therefore required under the Specified Workers Order to treat him as if he was ‘unvaccinated’. The consequence of this state of affairs was that the Respondent was prohibited under the Order from permitting Mr Stock to work outside of his ordinary place of residence. The Order provided no room for the Respondent to allow Mr Stock to work on its premises, even if it was the case that his work was almost exclusively performed outdoors and the only human contact he had was with co-workers employed by the Respondent. Had the Respondent permitted Mr Stock to work outside of his ordinary place of residence, it would have been guilty of an offence and exposed to a substantial financial penalty. Having regard to these circumstances, I am satisfied that the Respondent had a valid reason for dismissing Mr Stock on 20 December 2021 that was related to his capacity.

1. As to the assertion of the Respondent that there had been an ongoing failure by Mr Stock to follow a lawful and reasonable direction which was inconsistent with the employee/employer relationship, it was outlined in the Termination Letter that Mr Stock had been issued with a formal written direction to provide certain information about his COVID-19 vaccination status (including details of any relevant medical exemption) by no later than 15 October 2021. The way in which the Respondent’s managers followed up regarding compliance was to ask Mr Stock whether he “would be willing to get the vaccination.”[10]

1. I observe that in the recent decision in Roman v Mercy Hospitals Victoria Ltd[11] (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”[12]

1. In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am firstly satisfied, for the reasons given above, that the direction given by the Respondent did not require Mr Stock to act unlawfully. Secondly, I am satisfied the Respondent had issued a direction that was within the scope of Mr Stock’s contract of employment. The Directions and Specified Workers Order imposed an obligation on the Respondent to not permit Mr Stock to work for it outside of his ordinary place of residence unless he had provided vaccination information that established he was not ‘unvaccinated’. The Respondent made a direction related to Mr Stock’s job because his compliance or non-compliance with the direction bore upon his capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction.[13]

1. Turning then to the question of whether the direction given by the Respondent in either form (in writing or through its managers) was reasonable, I am satisfied it was. The Directions and Specified Workers Order imposed new regulatory requirements for Mr Stock’s role and either form of the direction given by the Respondent in response to them was directed towards Mr Stock being able to continue to do the job he was hired to do. As I have stated above, Mr Stock was within his rights to decline to become vaccinated and he could elect to not provide the Respondent with the information it requested from him but, having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd[14] as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”[15] for the direction made by the Respondent. I am therefore satisfied that the Respondent also had a valid reason for dismissing Mr Stock which involved misconduct constituted by his refusal to follow a lawful and reasonable direction.

Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)

1. Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[16] in explicit terms,[17] and in plain and clear terms.[18] In Crozier v Palazzo Corporation Pty Ltd[19] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

1. In an email to employees dated 5 October 2021,[20] which Mr Stock recalls receiving, the Respondent foreshadowed the requirement for its employees to provide vaccination information regarding their vaccination status and vaccination bookings. Mr Stock also recalls receiving the survey link for this purpose.[21] Mr Stock also recalls receiving advice from the Respondent, on or about 8 October 2021, that:

·   it was subject to requirements in the COVID-19 Mandatory Vaccination (Workers) Directions, which required workers of the Respondent to have their first COVID-19 vaccine dose by 15 October 2021 and be fully vaccinated by 26 November 2021;

·   it was to collect, record and hold vaccination workers scheduled to work on or after those dates; and

·   a response to the survey sent on 5 October 2021 was requested (although he thought completion of the survey was voluntary).

1. Mr Stock also recalls receiving something very similar to the email sent by the Respondent to its employees on 13 October 2021,[22] through which the Respondent requested evidence from employees of their COVID-19 vaccination status on or before 15 October 2021, outlined the instruction that employees choosing not to be vaccinated notify their Branch Manager regarding their vaccine status position and detailed leave arrangements available. Mr Stock also recalls a tool box talk held in October 2021 at which the requirements under the Directions were discussed.

1. I observe that Mr Stock outlined his position in relation receiving a COVID-19 vaccine in three pieces of correspondence to the Respondent dated 27 October 2021, 4 November 2021 and 9 November 2021. He advised he would not be receiving a vaccine.[23] I further observe that Mr Stock acknowledges receiving correspondence in reply from the Respondent dated 5 November 2021,[24] in which he was directed to work with his direct reporting manager at site to discuss options if he was unable to return to his role due to the requirements imposed by the COVID-19 Mandatory Vaccination (Workers) Directions.

1. At the hearing, Mr Stock gave evidence that he decided not to receive the COVID-19 vaccination and communicated his intention to the company in October and November 2021. Mr Stock also confirmed he understood that if he was not vaccinated, the Respondent was considering the termination of his employment, stating “the possibility was there.” Mr Stock also confirmed the understanding he outlined in his statement that if he failed to meet the vaccination requirements, his employment would be terminated,[25] stating “it was mentioned on a number of occasions” prior to 21 December 2021. Additionally, Mr Stock confirmed he was asked whether he was willing to get vaccinated in a discussion with Mr Sahinis on 20 December 2021, at which Mr Sahinis offered him “one final chance” and he replied that he would not be getting vaccinated.

1. Having regard to the circumstances of this case, I am satisfied Mr Stock was on notice of the reasons for his dismissal, the possibility of dismissal and provided with opportunities to respond prior to the decision to terminate his employment being made.

Unreasonable refusal by the employer to allow a support person – s.387(d)

1. This consideration is irrelevant in this case. There was no unreasonable refusal by the Respondent to allow Mr Stock a support person at discussions relating to his dismissal and nor has any such refusal been alleged.

Warnings regarding unsatisfactory performance – s.387(e)

1. This consideration is not a factor in this application.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

1. The Respondent is an employer with over 650 employees and has a human resources team. I do not consider the size of the Respondent to have been a relevant factor in this case. Sections 387(f)) and (g) of the Act are not relevant factors in this case.

Other relevant matters – s.387(h)

1. Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.

1. Mr Stock had worked for the Respondent for an extended period of time and had a good employment record. He was terminated with a 4-week payment in lieu of notice plus an additional week’s notice for being over the age of 45. I have noted Mr Stock’s submission that finding a new job with the ability to vary hours of work has been very hard because he is a single parent.

1. I have also noted that Mr Stock was afforded a not insignificant period to weigh up his options in the face of the Directions and the Specified Workers Order, with the Respondent having approved his combination of paid and unpaid leave from 18 October 2021 until 21 December 2021 inclusive. I am satisfied Mr Stock was sent comprehensive information by the Respondent regarding the circumstances which came to apply to him and the Respondent as a result of the Directions and Specified Workers Order. I have noted the contents of the various “Notices” sent by Mr Stock to the Respondent but draw no adverse inference from the lack of response from the Respondent to the points raised in them because the “Notices” comprised a disparate collection of concepts and assertions that lacked a coherent thread.

1. Bearing in mind the COVID-19 vaccines applicable at the material times had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration, I have taken into account Mr Stock’s objections to becoming vaccinated. While I am satisfied Mr Stock’s concerns were firmly held, the Respondent had to comply with the law and the requirements under the Directions and Specified Workers Order. The Respondent was required to collect vaccination information in relation to Mr Stock if he was to perform his job and was simply unable to permit Mr Stock to attend the workplace if he was unvaccinated. Mr Stock was unable to work as a consequence of the decision he made.

1. Having considered and weighed the matters arising in relation to s.387(h) of the Act, I do not find that they are sufficient to render Mr Stock’s dismissal harsh, unjust or unreasonable.

Conclusion

1. I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[26] I am satisfied the dismissal of Mr Stock was not harsh, unjust or unreasonable. Accordingly, I find that Mr Stock’s dismissal was not unfair. As I have found that Mr Stock’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr N Stock on his own behalf with assistance from Mr A Smith.
Ms M Bicchi of Ai Group for Rocla Ltd.

Hearing details:

2022.
Melbourne (via Microsoft Teams).
May 20.

[1] Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

[2] [2021] FWCA 5253

[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[4] Ibid.

[5] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).

[6] COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(15)(a)(xii).

[7] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Schedule 2, Division 2, Clause 19(12).

[8] Ibid.

[9] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Part 4, Clause 19.

[10] Exhibit R1 at paragraph [11] in DCB at p.222 and Exhibit R3 at paragraph [8] in DCB at p.223.

[11] [2022] FWC 711.

[12] Ibid at [30].

[13] Ibid at [31].

[14] [2021] FWCFB 6059.

[15] Ibid at [96].

[16] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[17] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.

[18] Ibid.

[19] (2000) 98 IR 137, 151.

[20] DCB at pp.176-179.

[21] DCB at pp.181-182.

[22] DCB at pp.184-189.

[23] DCB at pp. 276-277.

[24] DCB at p.33.

[25] DCB at pp. 35-36.

[26] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

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